Day on Torts

October 5, 2006

Upcoming Justice Programs Seminars

Some of you will recall that a couple of years ago former Tennessee Supreme Court Justice Penny White, former Court of Criminal Appeals Judge Joe Riley and I started "Justice Programs." For the third consecutive year Justice Programs is offering a 15 hour seminar program in Memphis, Knoxville, Chattanooga and Nashville that is designed for civil trial practitioners.

I will be speaking for three hours on tort and comparative fault issues, and hour and fifteen minutes about developments in tort law around the nation, and one hour about developments in the law of civil procedure. Penny and Joe will bring attendees up to date on USSC cases, evidence, and other significant cases outside the field of torts, civil procedure and evidence. There will be a one and one-half hour discussion entitled "Witnesses – A to Z" and Penny and Joe will offer three hours of ethics and professional credit. (The E & P hours will be offered continuously on Friday afternoon for those who want to attend only that portion of the program.)

Here is our schedule:

October 4, 2006

Case Dismissed for Spoliation

by The Law Offices of John Day, P.C.

Plaintiff filed a wrongful discharge and whistle-blower suit against his employer. The employer sent him a letter advising him to preserve all data on his company-issued laptop (which Plaintiff retained in his position for a period of time after the litigation began). Plaintiff destroyed 2200 personal files of data before returning the data to his employer.

The company sought sanctions, including dismissal of the case. The district court dismissed the case and imposed monetary sanctions of $65,000.

The Ninth Circuit Court of Appeals affirmed, finding that the district court did not abuse its discretion in finding that the destruction of the files was in bad faith, caused prejudice to the defendant, and that a lesser sanction would not be appropriate. The fee award was also affirmed.

October 3, 2006

Discovery of Finances of Experts

by The Law Offices of John Day, P.C.

The Pennsylvania Supreme Court has ruled that a party may conduct discovery into the financial records on a non-party’s expert witness "to facilitate an inquiry into bias." As explained in more detail below, it is clear that such discovery will not be permitted of every expert.

In Cooper v. Schoffstall, No. 212 MAP 2004 (Sept. 7, 2006), Plaintiff sought to discovery financial information from Dr. Eagle, the physician chosen by Defendant to conduct our equivalent of a Rule 35 examination. Specifically, Plaintiff sought "copies of federal form 1099 tax records associated with his performance of services as an independent contractor for calendar years 1999, 2000, and 2001, in undertaking ‘defense-related reports, examinations and depositions.’" Dr. Eagle resisted the subpoena, saying the discovery was inappropriate. Plaintiff contended that "that Dr. Eagle performed abundant defense medical examinations (on the order of 200 to 400 in some recent years), derived substantial income from this work, and issued written reports containing repetitive, predictable, defense-favored observations and conclusions" and therefore discovery was appropriate to show the existence and depth of his pro-defense bias.

The lower courts permitted the discovery. On appeal, Eagle maintained that "the personal tax information, other than records of payments made from defense counsel, is merely a gratuitous effort to impugn his credibility, disrupt his business, prevent him from ever desiring to offer medical-legal services again, and bully any potential expert witness from offering similar services." Plaintiff argued that the discovery sought was appropriately focused and that "[w]ithout the ability to obtain concrete evidence of the alleged pattern of bias, Ms. Cooper projects that impeachment cross examination is likely to be unavailable or ineffective against a skilled, experienced expert who, knowing that he or she is safe from contradiction, may equivocate and prevaricate with impunity."

October 2, 2006

A Noteworthy Rule 10 Opinion

by The Law Offices of John Day, P.C.

How can a Rule 10 opinion be noteworthy? Those of you who have no life other than the law know that a Rule 10 opinion is one that "shall not be published, and shall not be cited or relied on for any reason in any unrelated case." So why discuss it in any forum?

Because one has been released, and they are rare. You see, our appellate judges have been reluctant to use this rule because they are afraid that some members of the Bar will be upset that their case did not get a full-blown opinion. So, the judges put in the extra time to write an opinion that the vast majority of lawyers would agree is unnecessary given the issues involved. Time spent on such opinions takes away time that would be better spent on more complex matters.

We need to trust our appellate judges to make informed decisions about whether a case deserves a full-blown opinion. As lawyers, we know that some cases do not deserve such an opinion and, if they do not, then we need to support the judges on the appellate court when they decide to do one. The current workload of the judges on the civil court of appeals requires them to write about 1.5 opinions a week, 52 weeks a year. True, they have clerks to assist them, but it still is a significant workload. There is no reason why the workload should not be reduced through the judicious use of Rule 10 opinions.

October 1, 2006

Rule 11 Application Denied in Pre-Judgment Interest Case

by The Law Offices of John Day, P.C.

On June 21, 2006 I wrote a post about the status of prejudgment interest in Tennessee.

The recent case featured in that post was Francois v. Willis, No. M2005-01263-COA-R3-CV (June 6, 2006). The Tennessee Supreme Court has denied the plaintiff’s Rule 11 Application in the case.

So, is prejudgment interest in personal injury and wrongful death cases now ""morally, ethic’lly, spiritually, physically, positively, absolutely, undeniably and reliably dead?"

September 28, 2006

Vermont Supreme Court Allows Wrongful Death Recovery for Death of a Sibling

by The Law Offices of John Day, P.C.

The Supreme Court of Vermont has held that the sibling of a decedent may maintain a wrongful death suit seeking damages for loss of companionship where the sibling is the "next of kin."

The Vermont statute provides that in a wrongful death case the court jury may "give such damages as are just, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin or husband and next of kin, as the case may be." 14 V.S.A. § 1492(b). The Court had previously held that "pecuniary injuries are not limited to economic losses, but may include recovery for loss of child or spouse’s companionship, as well as loss of care, nurture, and protection."

In Dubaniewicz v. Houman, No. 2004-306 (September 15, 2006) extended its previous interpretation of the statute and held that plaintiff, as next of kin of the decedent, "may obtain such damages to the extent that he can prove them by submitting evidence of the physical, emotional, and psychological relationship between himself and the decedent."

September 20, 2006

Vacation

by The Law Offices of John Day, P.C.

This morning my wife and I leave on what I think is a well-deserved vacation. I turn 50 years old on Thursday and my wonderful wife is taking me to the Canadian Rockies to celebrate.

One year ago she made booked a room for us at the Moraine Lake Lodge, a 33-room lodge 15 minutes outside of the Village of Lake Louise. I have wanted to go the Canadian Rockies for years and am thrilled about the trip.

I am not taking my computer and am not going to use one in the hotel. I am going to attempt to go 5 days without any communication from or to my office. I haven’t done that for at least 6 years, maybe longer.

September 19, 2006

Yesterday’s Post

by The Law Offices of John Day, P.C.

Believe it or not yesterday’s post brought in more comments than any other post in a 24-hour period. I have published some of the comments; other comments seemed to address personal situations so I thought it best to pass on those.

Let me respond to several of the comments. Bill said "a judgment that is seemingly noncollectible today may be collectible tomorrow. Have you given any thought to this argument? In other words, what kind of proof should a victim of malpractice be required to produce?"

First, the plaintiff should have to prove the amount of liability insurance, if any, available to the original defendant. Second, if the plaintiff wants to collect a judgment more than the amount of the liability insurance originally available, he or she should have to prove that it was more likely than not that the plaintiff could have collected more than that amount from the tortfeasor. This will require proof of the income, assets and liabilities of the original defendant. In appropriate cases, the lawyer defendant will want to demonstrate that the income, etc of the original defendant is such that the plaintiff cannot prove that the judgment would not have been collectible.

September 18, 2006

Collectibility and the Burden of Proof

by The Law Offices of John Day, P.C.

I am currently defending a legal malpractice case for a friend of mine and have insisted that the plaintiff prove that amount of damages that would have been collectible in the underlying tort case. I have a hearing on this issue coming up shortly; the trial is this Winter.

I think the burden of proving collectibility should be on the plaintiff because it should be deemed part of the causation argument. More specifically, the plaintiff has to prove damages by reason of the alleged malpractice of the lawyer. (The lawyer failed to have process re-issued in a timely fashion, and the case was dismissed with prejudice). That means plaintiff must prove that what damages, if any, he would have been able to collect in the underlying tort action against the original defendant. The plaintiff should not be able to collect more damages from the lawyer defendant that he would have been able to collect against the original defendant. What the plaintiff lost was the right to proceed to trial against the original defendant, and therefore what he should be able to collect from the lawyer is what he could have collected from the original defendant.

Illinois Legal Malpractice Blog has a post that highlights a recent case taking the opposite view but goes on to cite cases that set forth the majority (and better reasoned) view.

September 17, 2006

Off Topic – Football

by The Law Offices of John Day, P.C.

The only thing better than Notre Dame losing is Notre Dame losing at home.